* The author gratefully acknowledges the considerable assistance of David B. Salmons, a Bristow Fellow in the Office of the Solicitor General during the October Term 1997, and David C. Frederick, an Assistant to the Solicitor General.
1. Eugene C. Gerhart, America's Advocate: Robert H. Jackson 143 (1958); Lincoln Caplan, The Tenth Justice:
The Solicitor General and the Rule of Law 171 (1987).
2. Caplan, supra note 1, at 261.
3. Act of June 22, 1870, ch. 150, § 2, 16 Stat. 162.
4. In addition to his offices in the Department of Justice, the Solicitor General has a working office in the
Supreme Court building, located on the main floor in close proximity to the courtroom.
5. See, e.g., 8 Op. Off. Legal Counsel 183, 193-99 (1984); 40 Op. Att'y Gen. 158 (1942); 39 Op. Att'y Gen. 11
(1937); 38 Op. Att'y Gen. 252 (1935); 38 Op. Att'y Gen. 136 (1934); 36 Op. Att'y Gen. 21 (1929); 31 Op. Att'y
Gen. 475, 476 (1919).
6. See Caplan, supra note 1, at 3.
7. Simon E. Sobeloff, Attorney for the Government: The Work of the Solicitor General's Office, 41 A.B.A. J.
229, 229 (Mar. 1955).
8. Among the more comprehensive analyses are Caplan, supra note 1; Symposium: The Role and Function of the
United States Solicitor General, 21 Loy. L.A. L. Rev. 1047 (1988); and Rebecca Mae Salokar, The Solicitor
General: The Politics of Law (1992).
9. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93. That the Attorney General's first enumerated duty has
always been to represent the United States in the Supreme Court underscores the Attorney General's close
connection with Article III courts. This connection becomes even more pronounced when one considers that in
the original bill of the Judiciary Act introduced in the Senate, the Attorney General was to be appointed by the
Supreme Court, and the district attorneys by the district courts, rather than by the President. See 4 The
Documentary History of the Supreme Court of the United States, 1789-1800 106-07 (Maeva Marcus & James
R. Perry ed., Colum. Univ. Press 1992); Charles Warren, New Light on the History of the Federal Judiciary Act of
1789, 37 Harv. L. Rev. 49, 108-09 (1924). For a discussion of the brief legislative history regarding the change,
see Susan L. Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning
There was Pragmatism, 1989 Duke L.J. 561, 570-72 & n.33.
10. As a result, all of the Attorney General's opinions, letters, and briefs had to be written out in his own hand, or
by staff provided at his own expense. See Homer Cummings & Carl McFarland, Federal Justice: Chapters in the
History of Justice and the Federal Executive, 154-58 (1937); James S. Easby-Smith, Edmund Randolph -- Trail
Blazer, 12 J. Bar Ass'n D.C. 415, 419 (1945) (hereinafter cited as Easby-Smith, Edmund Randolph); Sewell
Key, The Legal Work of the Federal Government, 25 Va. L. Rev. 165, 175-76 (1939). Moreover, because
Congress had not even thought it necessary to provide the Attorney General with office space, for years the
Attorney General served as an absentee, coming to the seat of government only when called on specific business.
See James S. Easby-Smith, The Department of Justice: Its History and Functions 8 (1904) (hereinafter cited as
Easby-Smith, Department of Justice).
11. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 92-93.
12. Id.; see Cummings & McFarland, supra note 10, at 19; Easby-Smith, Department of Justice, supra note 10,
at 5.
13. Letter from George Washington to Edmund Randolph (Sept. 28, 1789), reprinted in 30 Writings of George
Washington 418-19 (John C. Fitzpatrick ed., Gov't Printing Off. 1939); see Cummings & McFarland, supra note
10, at 19 & n.37; Easby-Smith, Edmund Randolph, supra note 10, at 419.
14. Easby-Smith, Edmund Randolph, supra note 10, at 420; Henry Barrett Learned, The President's Cabinet
159 (1912); Rex E. Lee, Lawyering in the Supreme Court: The Role of the Solicitor General, 21 Loy. L.A. L.
Rev. 1059, 1061 (1988).
15. 2 U.S. (2 Dall.) 409 (1792). At issue was the constitutionality of the Invalid Pensions Act of 1792, which
required the circuit courts to receive the applications of invalid veterans of the Revolutionary War and to certify to
the Secretary of War their opinions on the applications. Many of the circuit judges and justices believed the act to
be unconstitutional because it conferred upon the courts a nonjudicial function. When the application of William
Hayburn, an invalid veteran, came before a panel of judges in Pennsylvania composed of Justices Wilson and Blair
and District Judge Peters, the judges refused to take any action. For a thorough treatment of Hayburn's Case and
its subsequent, if not misguided, impact on the Court, see Maeva Marcus & Robert Teir, Hayburn's Case: A
Misinterpretation of Precedent, 1988 Wis. L. Rev. 527.
16. See 1 The Documentary History of the Supreme Court of the United States, 1789-1800 206 (Maeva
Marcus & James R. Perry ed., Colum. Univ. Press 1992). After hearing Randolph's argument in his capacity as
Hayburn's counsel, the Court concluded it would hold the motion under advisement until the next term -- by
which time, it turned out, Congress had revised the underlying statute, making resolution of the case unnecessary.
Id.; 2 U.S. (2 Dall.) at 409-10.
17. Letter from Edmund Randolph to George Washington (Dec. 28, 1791), reprinted in 1 American State Papers
(Misc.) 45 (1834); see Easby-Smith, Edmund Randolph, supra note 10, at 424-25; Key, supra note 10, at 176.
18. American State Papers, supra note 17, at 45-46; see 2 Annals of Cong. 1765-66 (1791); Easby-Smith,
Edmund Randolph, supra note 10, at 425.
19. See Report from Rep. Lawrence (Jan. 18, 1792), reprinted in 1 American State Papers 46 (1834); 3 Annals
of Cong. 329-31 (1792); see also Bloch, supra note 9, at 585-89; Easby-Smith, Edmund Randolph, supra note
10, at 425; Key, supra note 10, at 176-79.
20. Indeed, 27 years passed before Congress, in 1818, finally gave the Attorney General a clerk and made some
provision for office space. See Act of Apr. 20, 1818, ch. 87, § 6, 3 Stat. 445, 447. The following year, Congress
provided a small contingent fund of $500 for such essentials as stationery, fuel, and "a boy to attend the menial
duties." See Act of Mar. 3, 1819, ch. 54, 3 Stat. 496, 500; Cummings & McFarland, supra note 10, at 80-81,
155-56; Easby-Smith, Department of Justice, supra note 10, at 10. It took 62 years before the Attorney
General's salary was made comparable to other cabinet officers, see Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189,
212; Easby-Smith, Department of Justice, supra note 10, at 15, and 70 years before Congress gave the Attorney
General supervision and control over the district attorneys, see Act of Aug. 2, 1861, ch. 37, 12 Stat. 285, 285-86;
Cummings & McFarland, supra note 10, at 142, 218, 491; Bloch, supra note 9, at 618-20.
21. See 1 A Compilation of the Messages and Papers of the Presidents, 1789-1897 577-78 (James D. Richardson
ed., Bureau of Nat'l Lit. 1897).
22. 2 A Compilation of the Messages and Papers of the Presidents, 1789-1897 453-54 (James D. Richardson ed.,
Bureau of Nat'l Lit. 1897).
23. 6 Cong. Deb. 276, 276 (1830).
24. Id. For a discussion of Jackson's proposal, and Webster's successful opposition, see Key, supra note 10, at
177-79; Cummings & McFarland, supra note 10, at 144-46.
25. 6 Cong. Deb. 276, 277.
26. Act of May 29, 1830, ch. 153, 4 Stat. 414, 414. Although President Jackson signed Webster's bill into law,
he nonetheless remained unsatisfied with the structure of the government's legal work. In his second annual
message to Congress, he stated, "I am convinced that the public interest would be greatly promoted by giving [the
Attorney General] the general superintendence of the various law agents of the Government, and of all law
proceedings, whether civil or criminal, in which the United States may be interested." 3 A Compilation of the
Messages and Papers of the Presidents 1789-1897 1090 (James D. Richardson ed. Bureau of Nat'l Lit. 1897).
27. On Webster and Adams, see generally Samuel Flagg Bemis, John Quincy Adams and the Union 150-51,
155-57, 289-90, 311 (1956).
28. For example, in his first annual message on December 2, 1845, President James Polk called attention to the
need to place the Attorney General on the same footing as the heads of the executive departments. 5 A
Compilation of the Messages and Papers of the Presidents, 1789-1897 2265 (James D. Richardson ed. Bureau
of Nat'l Lit., 1897); see also Cummings & McFarland, supra note 10, at 147-48; Key, supra note 10, at 180.
Shortly thereafter bills were introduced in both the House and Senate, the latter under the sponsorship of former
Attorney General John M. Berrien, to implement Polk's proposals. Most notably, the bills would have made it the
duty of the Solicitor of the Treasury "to act in subordination to the Attorney General." Opposition arose and, as
with previous proposals, the bill was tabled. Cummings & McFarland, supra note 10, at 148 (citing Cong. Globe,
XV 613, 873, 881, 1130-31, 1134 (1845)).
29. 6 Op. Att'y Gen. 326, 335 (1854).
30. See H.R. Exec. Doc. No. 95, 33d Cong., 1st Sess. (1854).
31. See Exec. Order No. 1855-17-2 (July 16, 1855) (Order of President Pierce); Cummings & McFarland, supra
note 10, at 152, 218.
32. Act of May 15, 1820, ch. 107, § 1, 3 Stat. 592, 592. Prior to this time, the power to institute such suits had
been lodged in the Comptroller of the Treasury, see Act of Mar. 3, 1797, ch. 20, §§ 1,3, 1 Stat. 512, 514-15; see
also Key, supra note 10, at 177.
33. 6 Cong. Deb. 322-24; Key, supra note 10, at 177. A similar situation arose in the Post Office Department. In
recommending the bill to create the Department of Justice in 1870, Representative William Lawrence of Ohio
lamented that "[t]he Auditor of the Post Office Department, in charge of the prosecution of mail depredations --
immense in number and importance as they are -- and controlling them throughout the country, is merely a fourth-class clerk. He gives opinions and directions, and has compiled and published the Post Office laws without the aid
of or the accuracy to be secured by the profounder attainments and riper skill of the Attorney General." Cong.
Globe, 41st Cong., 2d Sess., 3038 (1870).
34. See Key, supra note 10, at 177. The amount of litigation directed by the agent was significant. By 1828 he
was overseeing more than 3000 pending cases. See 1 Op. Att'y Gen. 694 (1824); Cummings & McFarland, supra
note 10, at 144. Needless to say, this situation was in need of reform. See id.; Key, supra note 10, at 177.
It is not entirely fair to say that Congress did nothing in the face of frequent requests by the Executive to reform
and consolidate the legal work of the government in the decades prior to the Civil War. As early as 1824, the
Attorney General was given control over litigation involving land claims arising out of the Louisiana Purchase, and
he was charged with instructing the district attorneys in such litigation and with deciding which adverse district
court rulings to appeal. Act of May 26, 1824, ch. 173, § 9, 4 Stat. 52, 55; 6 Op. Att'y Gen., supra note 29, at
337. In 1852 Congress gave the Attorney General supervisory authority over a large body of suits dealing with
land claims in California and directed the Attorney General to review the transcripts of cases decided by the
commission charged with adjudicating the claims to determine which cases should be appealed to the district
courts and to the Supreme Court. See Act of Mar. 3, 1851, ch. 41, 9 Stat. 631; Act of Aug. 31, 1852, ch. 108, §
12, 10 Stat. 76, 99. Describing those responsibilities to the President and to Congress, Attorney General Cushing
stated in 1854 that "[t]his branch of business * * * involves responsible present relations to, and ultimate
management of, a large number of suits of the highest importance and interest, and therefore constitutes one of the
most onerous of the present occupations of the Attorney General." 6 Op. Att'y Gen., supra note 29, at 338. And
in 1853 Congress finally set the salary of the Attorney General on a par with that of the heads of the executive
departments. Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189, 212; see also Easby-Smith, Department of Justice,
supra note 10, at 15.
35. Act of May 29, 1830, ch. 153, § 5, 4 Stat. 414, 415. See supra note 26 and accompanying text.
36. See Cummings & McFarland, supra note 10, at 220-22, Key, supra note 10, at 179.
37. Act of July 2, 1836, ch. 270, § 16, 5 Stat. 80, 83.
38. By the outbreak of the Civil War, the law officers of the United States, other than the district attorneys, were
the Attorney General, the Solicitor of the Treasury, the Solicitor of the Court of Claims, and the Assistant
Attorney General. Soon would be added the Solicitor and Naval Judge Advocate General, Solicitor for the War
Department, Post Office Solicitor, Assistant Solicitor for the Treasury, Solicitor of Internal Revenue, and Solicitor
for the Department of State. See Cong. Globe, 41st Cong., 2d Sess., 3035 (1870); Cummings & McFarland,
supra note 10, at 221-22.
39. Act of Aug. 2, 1861, ch. 37, 12 Stat. 285.
40. Act of Aug. 6, 1861, ch. 65, 12 Stat. 327; see also Act of Mar. 3, 1863, ch. 76, § 13, 12 Stat. 737, 741; see
Cummings & McFarland, supra note 10, at 218-19.
41. Act of Mar. 2, 1867, ch. 169, § 3, 14 Stat. 471, 471-72.
42. Cong. Globe, 41st Cong., 2d Sess., 3035 (1870). Representative Lawrence of Ohio, one of the original
sponsors of the 1870 Department of Justice Act, explained the growth in the expenditures for outside counsel as
follows:
Under various laws, and sometimes, perhaps, without any very definite law, a practice has grown up largely since
1860 of giving employment to counsel for the Government in almost every conceivable capacity and under a great
variety of circumstances -- to counsel who are not officers of the Government, nor amenable as such. Under
appropriations for collecting the revenues, and other general purposes, very large fees have been paid for services
which could have been performed by proper law officers at much less expense.
Id. at 3038.
43. H.R. Exec. Doc. No. 40-198, at 3-4 (1868). Notably, the average annual expenditure for outside counsel in
Supreme Court cases during this period was greater than the $7500 annual income originally set for the Solicitor
General. See Act of June 22, 1870, ch. 150, § 10, 16 Stat. 162, 163.
44. See Cong. Globe, 41st Cong., 2d Sess., 3038 (1870).
45. Id. at 3035. The obvious potential for waste and abuse in this system caused Representative Lawrence to
describe the bill to create the Department of Justice as "a measure of economy" designed to "reduce expenditures
for legal services to the Government and put an end to a system which might be perverted to purposes of
favoritism." Id. at 3038. Indeed, Representative Lawrence predicted that the 1870 Act would "save the
unnecessary expenditure of more than one hundred thousand dollars annually for extra-official fees to counsel."
Id. at 3065.
46. Among other things, the Senate wanted to know whether the staff of the Attorney General's Office was
sufficient; what amounts had been spent securing nongovernmental attorneys to represent the government's
interests in the Supreme Court and for similar counsel to assist the district attorneys; and whether the solicitors
and law clerks in the various departments and the Court of Claims could be dispensed with and their duties placed
under the direction of the Attorney General, "so as to bring all the law officers of the Government under one head,
with saving of expense and benefit to the public service." Cong. Globe, 40th Cong., 2d Sess., 196 (1867); see
also Cummings & McFarland, supra note 10, at 222.
47. S. Exec. Doc. No. 40-13, at 2 (1867).
48. Id.
49. As is the case of the attorney general, the position is of English origin. Sir William Holdsworth explains that
by 1509 the position of the King's solicitor was well entrenched. 6 A History of English Law 462-63 (1987).
Like his counterpart in private practice, the King's solicitor was inferior to the King's attorney and served as a
general assistant to the attorney in the handling of the King's legal business. Id. at 463, 469-70. Indeed, beginning
in 1530, it became the custom on the change of law officers to make the King's solicitor the King's attorney. Id. at
463. By the seventeenth century, the King's attorney and solicitor were the only officials authorized to initiate
legal proceedings on behalf of the Crown, and they were given direction over the King's lesser law officers. Id. at
471-73. They also became important political, as well as legal, counselors to the crown, but the basic role of the
King's solicitor -- to assist the King's attorney in fulfilling his important legal responsibilities -- has remained
unchanged. Id.
50. See infra notes 70-92 and accompanying text.
51. See supra notes 9-18 and accompanying text.
52. Cong. Globe, 40th Cong., 2d Sess., 153 (1867).
53. Cong. Globe, 40th Cong., 2d Sess., 934 (1868).
54. See id. at 196, 934, 1116, 1271-73, 1633, 1860, 2480 (1868); Cong. Globe, 41st Cong., 2d Sess., 3035
(1870). For a general description of these legislative efforts, see Cummings & McFarland, supra note 10, at 223.
55. Cong. Globe, 40th Cong., 2d Sess., 1271-73.
56. See Cummings & McFarland, supra note 10, at 223.
57. Act of June 25, 1868, ch. 71, § 5, 15 Stat. 75, 75-76.
58. Act of Mar. 3, 1869, ch. 121, 15 Stat. 283, 294.
59. See Cummings & McFarland, supra note 10, at 224.
60. Cong. Globe, 41st Cong., 2d Sess., 1568 (1870). Although Lawrence disagreed with certain minor aspects
of the bill -- for example, he preferred calling the new department the "law department" -- he gave it his full
support. See id. at 3039.
61. Id. at 4490.
62. Id. at 3036.
63. Id. at 3035. Jenckes further explained that "[o]ne of the objects of this bill is to establish a staff of law
officers sufficiently numerous and of sufficient ability to transact this law business of the Government in all parts
of the United States." Id.
64. Act of June 22, 1870, ch. 150, 16 Stat. 162. The Office of the Solicitor General of the United States and the
Department of Justice came into formal existence on July 1 of that year. Id. § 19, 16 Stat. at 165.
65. Id. § 2, 16 Stat. at 162.
66. See id. § 1, 16 Stat. at 162; Rev. Stat. §§ 346, 347 (1878); 28 U.S.C. § 503 (1994); see also Charles Fahy,
The Office of the Solicitor General, 28 A.B.A. J. 20, 22 (1942).
67. Dictionary of American Biography 55 (1929). One case from Bristow's days as district attorney is of
particular note. In the fall of 1869, Bristow secured the murder conviction of two white men, John Blyew and
George Kennard, for the brutal murder of a black family. Bristow brought the case in federal court under a
section of the Civil Rights Act of 1866, Act of Apr. 9, 1866, ch. 31, § 3, 14 Stat. at 27, which gave federal courts
jurisdiction over "all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or
judicial tribunals of the State * * * where they may be," any of the rights granted by the act, including the rights to
"give evidence" and to have "full and equal benefit of all laws and proceedings for the security of person and
property, as is enjoyed by white citizens." Id. § 1, 14 Stat. at 27. Bristow brought the murder charges in federal
court because all of the witnesses to the murder were black, and Kentucky law prohibited blacks from testifying
against white defendants. See Robert D. Goldstein, Blyew: Variations on a Jurisdictional Theme, 41 Stan. L.
Rev. 469 (1989).
The defendants were found guilty of murder and sentenced to death. They appealed to the Supreme Court,
arguing that the district court lacked jurisdiction over what was in essence a state murder trial. When the Supreme
Court took up their claim, Benjamin Bristow, now the newly appointed Solicitor General, together with Attorney
General Amos T. Ackerman, presented the case for the government. The Supreme Court held that the so-called
"affecting jurisdiction" of the act only applied to cases in which the affected persons were the actual parties to the
case. Blyew v. United States, 80 U.S. (13 Wall.) 581, 594 (1871). This excluded the impact on the black
witnesses, mostly surviving family members, and it also excluded the victims, since "[m]anifestly the act refers to
persons in existence." Id. at 594. Thus, the Court held that the district court lacked jurisdiction and vacated the
convictions. Bristow's efforts, however, were not entirely in vain. Due in part to Bristow's tenacity in pursuing
the issue, Kentucky repealed the testimonial bar in January 1872, shortly before the Supreme Court handed down
its decision in Blyew. See Goldstein, supra at 563; Ross A. Webb, Benjamin Helm Bristow: Border State
Politician 82-85 (1969). Some modicum of justice was eventually imposed on the culprits. Kennard was
convicted of the murders in state court in 1876 and sentenced to life imprisonment. He served approximately nine
years in prison before being pardoned by the governer on the ground of poor health. See Goldstein, supra, at 564
n.358. Blyew's first trial, in 1873, resulted in a hung jury. He escaped before he could be retried and remained
free for 17 years, until he was found and convicted of the murders in 1890. Although sentenced to life
imprisonment, Blyew served less than six years in prison before receiving a pardon from the Democratic acting
governor of North Carolina, who expressed doubts about the evidence used to convict Blyew. See id. at 563-66.
68. Letter from Secretary Wilson to Attorney General Williams (June 30, 1874), quoted in Cummings &
McFarland, supra note 10, at 228 n.27. Whitman had actually been in poor health for some time and for at least a
year prior to his discharge had employed a substitute to fulfill his duties to the Department. See George Rice
Carpenter, Walt Whitman (1924).
69. On June 30, 1874, Attorney General George H. Williams wrote Whitman that his service would be terminated
as of July 1, 1874, although shortly thereafter the Attorney General granted Whitman two months' pay, which was
customary in such circumstances. See Gay Wilson Allen, The Solitary Singer: A Critical Biography of Walt
Whitman, 461 (1967). Unfortunately, this was not the first time Whitman was faced with discharge from public
employment. In May 1865 President Andrew Johnson's newly appointed Secretary of the Interior, James Harlan,
issued a circular to the bureau heads in the department asking them to report as to the "loyalty" of each of the
employees under him, and also "whether there are any whose fidelity to duty or moral character is such as to
justify an immediate dispensation of their services." Id. at 344 (quoting a New York Herald article dated May 31,
1865). Word apparently got back to Harlan of Whitman's authorship of Leaves of Grass, which was by then in its
third edition. Harlan, a devout Methodist from Iowa, apparently concluded that Whitman failed his test for "moral
character" and abruptly sent Whitman a notice dated June 30, 1865, informing him that his services would be
"dispensed with from and after this date." Id. at 345. With the aid of William O'Connor, a prominent
Washingtonian and loyal supporter of Whitman, and Assistant Attorney General J. Hubley Ashton, it was arranged
instead for Whitman to be transferred to a position as a clerk in the Attorney General's Office. The entire episode
received moderate press coverage, with one paper wryly commenting that Whitman "now occupies a desk in the
Attorney General's office, where we suppose they are not so particular about morals." Id. at 347 (quoting July 12,
1865, editorial in the Eagle).
70. 77 U.S. (10 Wall.) 395 (1870).
71. Letter from John M. Harlan to Bristow (Nov. 16, 1870), quoted in Webb, supra note 67, at 74.
72. Letter from W.A. Meriwether to Bristow (Nov. 18, 1870), quoted in Webb, supra note 67, at 74. Justice
Noah Swayne's opinion for the Court accepted the new Solicitor General's position that ignorance can never be
the basis of a legal right in its entirety. See Hodson, 77 U.S. (10 Wall.) at 409.
73. These figures are derived from the counsel notations in the early published cases, and are less than conclusive
because special counsel for the government were apparently not consistently designated. See Lee, supra note 14,
at 1065 & n.20.
74. See Lee, supra note 14, at 1066.
75. Indeed, it was not until the 1920s that the Solicitor General's name began appearing on all of the government's
briefs to the Supreme Court. See id.
76. Phillips served as Assistant District Attorney in 1871 and 1872 at Raleigh, North Carolina. During this time,
he oversaw the prosecution of several important Klan cases. See R.H. Battle, Obituary of Samuel Field Phillips,
LL.D.," 1 N.C. L.J. 22, 27 (1904); see also Robert D. Miller, Samuel Field Phillips: The Odyssey of a Southern
Dissenter, 58 N.C. Hist. Rev. 263, 275 (1981).
77. From a search of WESTLAW's database, for example, in 1873 Attorney General Williams appears to have
participated in 10 oral arguments; however, in none of these did he argue solo. Attorney General Charles Devens,
who held office between 1877 and 1881, participated in nine arguments during his entire tenure. And Attorney
General Benjamin H. Brewster, who served between 1881 and 1885, when both he and Phillips resigned, appears
to have argued only two cases as Attorney General. Subsequent Attorneys General were often more involved in
Supreme Court matters.
78. Battle, supra note 76, at 26-27. Phillips is perhaps best known for an argument that he presented after leaving
the Solicitor General's Office. In 1896 he helped represent Homer Plessy in Plessy v. Ferguson, 163 U.S. 537
(1896). Interestingly, the only vote Phillips got in Plessy was from Justice John Marshall Harlan, Benjamin
Bristow's former Kentucky law partner.
79. Some Facts about the Life and Public Services of Benjamin Helm Bristow of Kentucky 21-22 (1876),
Bristow Papers, Library of Congress. In fact, Bristow served the Supreme Court with such distinction that his
name was often mentioned to fill the vacancy of Associate or Chief Justice. See Charles Fairman, Reconstruction
and Reunion, 1864-68; 7 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United
States, 21-24, 35, 504-05 (1987); Webb, supra note 67, at 128, 131, 267-73.
80. See supra text accompanying note 63.
81. Act of May 31, 1870, ch. 114, 16 Stat. 140.
82. See Webb, supra note 67, at 88; James Wilford Garner, Reconstruction in Mississippi, 351-352 (1901).
83. Because of the constitutional issues presented, a select committee created by Congress to investigate abuses
of the Ku Klux Klan, the Joint Select Committee to Inquire into the Condition of Affairs in the Late
Insurrectionary States, would later describe the case as "[t]he first important trial in the United States under the
enforcement act," S. Rep. No. 42-41, at 936 (1872), and the Committee included the entirety of the trial
transcript, minus argument by counsel, in its report. See id. at 936-87.
84. See Webb, supra note 67, at 88; Cummings & McFarland, supra note 10, at 235-36.
85. The Supreme Court later struck down portions of the Enforcement Act in United States v. Reese, 92 U.S.
214 (1875), and narrowly construed other portions of the Act in United States v. Cruikshank, 92 U.S. 542 (1875).
Both cases were argued for the government by Solicitor General Phillips and Attorney General Williams.
86. Webb, supra note 67, at 88; Garner, supra note 82, at 351-52. Despite such victories, Klan convictions were
difficult to obtain. Between the problems of packed juries and perjured testimony, the district attorneys
complained of their inability to secure convictions, despite the numerous indictments they filed. See id.; H.R.
Exec. Doc. No. 42-268, at 30-41 (1872); see also Webb, supra note 67, at 88; Garner, supra note 82, at 351-52.
Bristow later wrote to another district attorney facing similar challenges: "The higher the social standing and
character of the convicted party, the more important is a vigorous prosecution and prompt execution of
judgment." Letter from Bristow to D.H. Starbuck (Oct. 2, 1871), quoted in Webb, supra note 67, at 92; see also
Cummings & McFarland, supra note 10, at 237.
87. Section 4 of the 1870 Department of Justice Act provided:
That questions of law submitted to the Attorney-General for his opinion, except questions involving a construction
of the Constitution * * * may be by him referred to such of his subordinates as he may deem appropriate, * * *
and if the opinion given by such officer shall be approved by the Attorney-General, such approval so indorsed
thereon shall give the opinion the same force and effect as belong to the opinions of the Attorney-General.
Act of June 22, 1870, ch. 150, § 4, 16 Stat. 162, 162. The Attorneys General, particularly during Solicitor
General Phillips's tenure, increasingly took advantage of this provision to assign opinion-writing responsibilities to
the Solicitor General. See, e.g., 15 Op. Att'y Gen. 491-665 (1875); 14 Op. Att'y Gen. 585-684 (1872); 13 Op.
Att'y Gen. 572-73 (1870), 588-91; see also Webb, supra note 67, at 73-74.
88. As Bristow's biography reflects, drawing upon his letters during the period, Attorney General Ackerman's
frequent and long absences from the Capital placed a considerable weight on the Solicitor General. See Webb,
supra note 67, at 86, 90, 92, 94.
89. See, e.g., 17 Op. Att'y Gen. 240-50 (1881); 15 Op. Att'y Gen. 28-35, 106-09 (1875-1876); 13 Op. Att'y Gen.
440-66 (1871).
90. See Act of June 16, 1933, ch. 101, § 16, 48 Stat. 283, 307-08; Reorg. Plan No. 2 of 1950, §§ 3, 4, 64 Stat.
1261, 1261.
91. Proceedings Before and By Direction of the President Concerning the Meaning of the Term "Whiskey" 1243-60 (1909) (report of Solicitor General Bowers).
92. Id. at 1244.
93. Id. at 1265-1325 (hearing before President Taft on distillers' exceptions to Solicitor General Bowers's report).
Also present at President Taft's hearing was the Attorney General, George W. Wickersham, and the Secretary of
Agriculture, James Wilson. Before hearing argument on the distillers' exceptions, President Taft noted the novelty
of such a proceeding, stating that "I want to say that it is not usual for the President, I think, to give hearings of
this sort." Id. at 1266.
94. See Nancy V. Baker, Conflicting Loyalties: Law and Politics in the Attorney General's Office, 1789-1990
14 (1992); Cummings and McFarland, supra note 10, at 513.
95. Webb, supra note 67, at 74. Unfortunately, we have not been able to locate in the National Archives the
original sources on which Webb relied for that statement.
96. Although the Attorney General was given formal supervisory authority over the district attorneys as early as
1861, the press of the Attorney General's other work, the inadequacy of his budget and staff, and confusion over
the overlapping authority of the Solicitor of the Treasury and other departmental officers made it impossible for
the Attorney General to exert control over the district attorneys in all but the most important of cases. See
Cummings & McFarland, supra note 10, at 219-20.
97. 1871 Att'y Gen. Ann. Rep. 5. In requesting that Congress "destroy the exception which is now supposed to
exist in internal revenue cases," Attorney General Ackerman, quite accurately it turned out, warned that "[t]he
theory upon which such control is retained, if consistently applied, would make district attorneys controllable by
an officer of the Post-Office Department in post-office cases; by the Commissioner of Customs in custom cases;
by the Commissioner of Pensions in pension cases; by the Commissioner of Indian Affairs in cases relating to
Indians; and so on." Id.
98. Id. at 6 ("It was probably the purpose of Congress that the distribution of business in the Department of
Justice should be made by the Attorney General in his discretion, but the laws, mostly of long standing, which
impose specific duties upon the Solicitor of the Treasury, interfere with such discretionary distribution.").
99. 1872 Att'y Gen. Ann. Rep. 16. After reminding Congress that the Department of Justice Act transferred the
Solicitor of the Treasury, the Solicitor of Internal Revenue, the Naval Solicitor, and the examiner of claims in the
Department of State to the Justice Department, Attorney General Williams complained that "the act implies, and is
so construed by the heads of the different Departments, that their duties are to be the same as they were before the
transfer was made, and that their practical relations to the Departments to which they were attached before said
act was passed remained unchanged." Id. He concluded that "[w]hile these officers are nominally subjected to the
control of this Department, they are attached to and exclusively perform duties assigned to them by the heads of
other Departments. Obviously, this is an arrangement which not only creates a divided jurisdiction, but produces
confusion in the transaction of the public business." Id.
100. See 1871 Att'y Gen. Ann. Rep. 5-6; 1872 Att'y Gen. Ann. Rep. 16. Attorney General Williams in 1872
secured the introduction into the House of a bill to put an end to the remaining divisions of authority in his
department and strongly urged passage of the measure in his annual reports to Congress in 1872 and 1873, see
1872 Att'y Gen. Ann. Rep. 16; 1873 Ann Rep. Att'y Gen. 18, but to no avail.
101. Act of June 8, 1872, ch. 335, § 3, 17 Stat. 283, 284; 1872 Att'y Gen. Ann. Rep. 16.
102. See Key, supra note 10, at 185. Those statutory impediments to creating a unified legal apparatus were
exacerbated by Congress's failure to provide adequate quarters for the new Department of Justice. In his annual
report to Congress, less than six months after the creation of the Department, Attorney General Ackerman
complained that "the offices of this Department are dispersed in five buildings, some of them at a considerable
distance from the others." 1870 Att'y Gen. Ann. Rep. 1. The departmental solicitors were left in their old offices
in close proximity to their department heads, with whom they continued their prior allegiances with little or no
regard for the consolidation Congress envisioned in the Department of Justice Act. Even the Attorney General
and the Solicitor General did not share the same office building. Attorney General Ackerman warned that "[u]ntil
a building sufficient for all of them shall be provided, the purpose of Congress to bring under one direction all the
law officers of the Executive Departments will not be thoroughly accomplished." Id.
The following year showed some improvements. The officers of the Justice Department not previously affiliated
with other executive departments all moved into three floors of the Freedman's Savings Bank building on
Pennsylvania Avenue at Fifteenth Street, where they remained until 1899. But these offices, too, were less than
ideal. The space was crowded, there was often no heat, and the sewer beneath the building caused foul air to
permeate the building, especially in hot weather. See 1891 Att'y Gen. Ann. Rep. 24; Cummings & McFarland,
supra note 10, at 228. And because of a shortage of space, the department solicitors were again left in their
former locations. By the time of his 1871 report to Congress, "[t]he want of sufficient accommodations in one
building," together with the intransigence of the solicitors, had forced Attorney General Ackerman to lower his
expectations. 1871 Att'y Gen. Ann. Rep. 5. "As long as this physical difficulty prevented the literal execution of
the law," Ackerman wrote, "it was thought unwise to put other Departments to inconvenience by disturbing the
practical relations previously existing between these officers and the heads of those Departments. But an effort
has been made by frequent conference to approach as near as possible to the execution of the intention of
Congress, expressed in the law." 1871 Att'y Gen. Ann. Rep. 5. Id.
103. 72 U.S. (5 Wall.) 370 (1866).
104. 74 U.S. (7 Wall.) 454 (1868).
105. 98 U.S. 61 (1878).
106. 125 U.S. 273 (1888).
107. Indeed, there are marked parallels between the Court's reasoning in San Jacinto Tin and Attorney General
Randolph's arguments in Hayburn's Case. For a discussion of Randolph's arguments, see Marcus & Teir, supra
note 15, at 535-41; Cummings & McFarland, supra note 10, at 27-28.
108. San Jacinto, 125 U.S. at 278-88.
109. 513 U.S. 88 (1994).
110. See Reorg. Plan No. 4 of 1953, § 1, 3 C.F.R. 1026 (1949-1953), reprinted in 67 Stat. 636, codified as
amended at 28 U.S.C. § 508 (1994).
111. See Act of June 16, 1933, § 16 48 Stat. 283, 307-08; Reorg. Plan No. 2 of 1950, §§ 3, 4, 3 C.F.R. 1002,
1003 (1949-1953), reprinted in 5 U.S.C. app. at 1468 (1994), and in 64 Stat. 1261, 1261; see also supra note 90
and accompanying text. In his memoirs, former Solicitor General Erwin Griswold describes his surprise in
discovering that, as a young attorney in the Solicitor General's Office in the early 1930s, he was called upon to
draft opinions for the Attorney General on important subjects with little or no oversight by the Solicitor General,
who was too busy with the press of Supreme Court litigation to review the drafts.
Because of the number and significance of these opinions of the Attorney General, and related matters, I became
concerned. It seemed to me that the work was both adequate in volume and of such importance that it should not
be handled by a young lawyer in the Solicitor General's office. In particular, I felt that these drafts of opinions,
and other policy matters, should be the responsibility of an officer appointed by the President after confirmation by
the Senate. Since it was clear that the Solicitor General did not have time available to handle these matters
himself, I recommended that a new office should be established, and that the new officer should have the title of
Assistant Solicitor General, nominated by the President, and confirmed by the Senate. Such a statute was enacted.
Erwin N. Griswold, Ould Fields, New Corne: The Personal Memoirs of a Twentieth Century Lawyer 101
(1992).
112. Reed in Collapse; AAA Cases Halted, N.Y. Times, Dec. 11, 1935, at 1, 9. The article begins with the
heading "Federal Pleader is Taken Ill in Midst of New Hail of Questions by Judges" and describes the incident as
follows:
Bringing to a dramatic halt the second day of argument in the Supreme Court on the constitutionality of the
Agricultural Adjustment Act and the Bankhead Cotton Control Law, Solicitor General Stanley Reed faltered this
afternoon and sat down, physically unable to continue.
His collapse as he defended the Bankhead act was in the midst of a barrage of technical questions from the nine
judges * * * .
Id. at 1. The article explains that as Reed attempted to argue "that the case was a non-adversary one and that
there was nothing in the record to show opposition between the plaintiff and the defendant or an effort to try out
the issue[,] * * * [a] hail of questions followed from Justices Hughes, McReynolds, Butler, Van Devanter and
Roberts, all asking Mr. Reed why he alleged the record to be non-adversary when both sides said that it was not
and whether the contention was based on both sides stipulating certain allegations." Id. at 9. As Reed struggled
with this "nest of questions," Chief Justice Hughes, broke in and "in one crisp sentence" declared that "[t]he court
does not desire to hear you further on that point." Ibid.
Then, as Reed began to make an additional point about the record and was again faced with a barrage of hostile
questions from the Justices, he "immediately paled and said in a low voice: 'I must beg the court's indulgence, but I
am too ill to proceed further.'" Id. Reed's face, we are told, "was ashen and he showed signs of utter exhaustion."
Id. at 1.
Of course, the repeated prospect of defending New Deal legislation before the Hughes Court may have been
enough to make any advocate feel faint. But the magnitude of the Solicitor General's Supreme Court litigation
during this period placed immense pressure on the office and no doubt left little or no room for the Solicitor
General's nonlitigation-related duties. As the New York Times put it, "Court officers and representatives of the
Department of Justice explained that the Solicitor General was suffering from extreme weakness caused by the
strain of the major cases he had prepared and argued." Id.
113. Lehmann's poignant words have been inscribed on the wall of the Attorney General's rotunda in the United
States Department of Justice building. See Brady v. Maryland, 373 U.S. 83, 87 n.2 (1963) (quoting Solicitor
General Simon Sobeloff, in turn paraphrasing Lehmann); James L. Cooper, The Solicitor General and the
Evolution of Activism, 65 Ind. L.J. 675, 676 n.8 (1990); Caplan, supra note 1, at 17.
114. Francis Biddle, In Brief Authority 98 (1962).